"BROADCAST VIEWS"
SPEECH BY COMMISSIONER GLORIA TRISTANI
TO THE FEDERAL COMMUNICATIONS BAR ASSOCIATION
MAY 21, 1998
Thank you. It's a pleasure to be with you as your luncheon speaker. I'd like to use this
opportunity to share some of my views about broadcasting. In particular, I'd like to talk about
broadcasting's relationship to the public, the continued relevance of the scarcity doctrine and what
the public interest might mean in today's world.
I wanted to start with a question a lot of people around Washington have been asking:
why should broadcasters be treated any differently under the First Amendment than other media
voices like newspapers?
The short answer is because the Supreme Court said so. In Red Lion, the Supreme Court
said:
Where there are substantially more individuals who want to broadcast than there are
frequencies to allocate, it is idle to posit an unbridgeable First Amendment right to
broadcast comparable to the right of every individual to speak, write or publish.
The Court added: "There is no sanctuary in the First Amendment for unlimited private censorship
in a medium not open to all."
I know what a lot of you are probably thinking. Yeah, sure, Red Lion. Hasn't that case,
and the whole scarcity rationale it relied on, been thoroughly discredited? Isn't Red Lion just one
of those Warren Court relics that would never be upheld today? If you only looked at law
reviews and the stuff coming out of Washington think tanks, you might think so. But apparently
word of Red Lion's demise hasn't reached the only audience that matters -- the Supreme Court.
In both the 1994 Turner decision and the 1997 Reno decision, the Court expressly reaffirmed Red
Lion and the scarcity rationale as justifying more intrusive regulation of broadcasters than
newspapers and other media. I don't think the Commission should be in the business of
questioning the Court's judgment.
Nor do I think that the Court is simply waiting to overturn Red Lion until the Commission
sends a signal that scarcity no longer exists. A very different Commission tried that back in 1987.
It was a decision called Syracuse Peace Council. That decision argued that if scarcity was ever a
valid reason to distinguish broadcasting from other media, it no longer applied. Given the
explosion in broadcasting and other media outlets, the Syracuse Peace Council Commission
called on the Supreme Court to reconsider Red Lion and apply the same First Amendment
standard to broadcasters that applies to newspaper publishers. It's now been eleven years since
the Commission declared in Syracuse Peace Council that scarcity was a thing of the past; thus far,
there has been no evidence that the Supreme Court finds the Commission's "signal" at all
persuasive. Congress, too, appears unconvinced. In the legislative history of the Children's
Television Act of 1990, Congress repeatedly relied on Red Lion and the scarcity rationale as
supporting the Act's constitutionality.
The Court and Congress have stuck with the scarcity rationale for good reason. Scarcity
is clearly still with us. If there's anything I've been made aware of over the last six months on the
Commission, it's the scarcity of the broadcast spectrum. There are still far more citizens who
want to speak over the public airwaves than can be accommodated.
The spectrum isn't scarce? Tell that to the hundreds of low power and TV translator
operators -- many of whom provide extremely valuable services to their communities -- who are
being displaced by full-power broadcasters during the digital conversion.
The spectrum isn't scarce? Tell that to the people who want to operate low power radio
stations and were met with an avalanche of objections by existing broadcasters that there just isn't
enough room on the spectrum to accommodate them.
The spectrum isn't scarce? Tell that to the companies that are spending millions of dollars
to buy existing broadcast licenses, far in excess of the value of the station's physical assets. If the
spectrum isn't scarce, these companies owe their shareholders an explanation.
So scarcity is still very much with us. But those who would do away with Red Lion say
so what? Scarcity, they say, doesn't distinguish the broadcast spectrum from other scarce
economic goods. For instance, newsprint, ink, delivery trucks, and computers that go into the
production of newspapers are scarce -- what makes scarcity of the broadcast spectrum different?
The difference is that broadcasting scarcity is government created and government
enforced. In principle, all citizens have an equal right to speak on the public airwaves. The
government could have decided to give every citizen a yearly chit, good for a pro rata share of
time to broadcast. Or it could have granted licenses to private parties but required them to set
aside a certain amount of capacity for public access, similar to what Congress did in the cable
context. Instead, Congress decided to grant certain citizens the right to speak freely over the
public airwaves and to deny all others that right.
Let me make clear that I think Congress got it exactly right. Our system of broadcasting -
- relying on private entities acting under an obligation to serve the public interest -- is the finest
broadcasting system in the world. But the point here is that broadcast licenses are government
benefits conferred on certain citizens and not on others. It's preferential treatment. It's as if the
government set up a megaphone in the park for the exclusive use of certain citizens, and then
stationed a policeman next to the podium to ensure that none of the non-speakers was allowed to
interfere with the selected group's exclusivity.
That's why it's confusing to me when I hear people call for government to stay out of the
broadcasting business. Broadcasting as we know it would not exist were it not for government
involvement in assigning exclusive use of portions of the public airwaves and enforcing those
rights against any encroachers. By contrast, newspapers don't rely on the exclusive use of public
property to provide service. If the government owned all of the printing presses in the country
and gave them out on an exclusive basis to certain selected citizens, the analogy to broadcasting
would be more accurate.
This government-created system permits the government to impose fiduciary duties on
broadcasters that it could not impose on newspapers under the First Amendment. Let me quote
again from Red Lion:
[A]s far as the First Amendment is concerned those who are licensed stand no better than
those to whom licenses are refused. A license permits broadcasting, but the licensee has
no constitutional right to be the one who holds the license or to monopolize a radio
frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment
which prevents the Government from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with obligations to present those
views and voices which are representative of his community and present those views
which would otherwise, by necessity, be barred from the airwaves.
In other words, no one has a First Amendment right to monopolize a broadcast frequency.
Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private
interests are constrained by the obligation to serve the public interest.
Well, those who would overturn Red Lion would fire back, the spectrum is only scarce
because we're giving it away. It's a matter of economics. If we sold off the spectrum with no
strings attached, then supply and demand could come into equilibrium and we wouldn't have more
people asking for licenses than there were licenses to assign. True enough. Purely as an
economic matter, you might be able to solve the scarcity problem by privatizing the airwaves. For
those who would make this argument, I have just one suggestion -- run for Congress. Your
system may work but it's not the one we have. So far, our elected representatives have opted for
a different path: give licensees free and exclusive use of the broadcast spectrum but demand that
they operate for the benefit of all those who were necessarily excluded.
True, we will now be auctioning off certain new broadcast licenses where competing
applications are filed. But for the foreseeable future the vast majority of broadcasters will be
operating with licenses for which the public did not receive a penny. Even for those new stations
that obtain their licenses through an auction, their winning bids will have been discounted by the
projected cost of fulfilling their fiduciary obligation to serve the public interest.
So I believe the notion of scarcity in Red Lion is still fully supportable. Some day,
technology may solve the physical limitations of the broadcast spectrum, but we're nowhere near
that point today. On the other hand, if it's time for a reassessment, a good place to start might be
to repudiate the overreaching dicta about scarcity in Syracuse Peace Council.
On a broader level, though, I think scarcity is a red herring. Those who oppose imposing
any special obligations on broadcasters have focused on scarcity as if it were the only possible
ground for treating broadcasters differently. There are other grounds that I believe need to be
explored. One idea rests on the public forum doctrine. The basic argument is that broadcasters
have been given the exclusive use of a valuable piece of public property -- spectrum (including
billions of dollars worth of additional spectrum to convert to digital). Under this theory, the
government would be permitted to impose certain restrictions on broadcasters as long as they are
reasonable and viewpoint neutral. Another idea argues that the First Amendment is designed to
promote a robust and open debate on issues of public concern, and that the government can and
should play an active role in ensuring that a diversity of viewpoints are presented on the public
airwaves.
Another idea that resonates with me is that broadcasters have voluntarily entered into a
binding deal with the public -- a quid pro quo, if you will. They get special benefits that
newspapers don't get, like free spectrum and must-carry rights. In exchange, they have special
obligations that newspapers don't have, like serving the public interest. Congress set the original
parameters of the deal almost seventy years ago and has stuck with it ever since. Let me read a
quote from an opinion by Warren Burger, certainly no raving liberal, prior to his appointment as
Chief Justice:
A broadcaster has much in common with a newspaper publisher, but he is not in the same
category in terms of public obligations imposed by law. A broadcaster seeks and is
granted the free and exclusive use of a limited and valuable part of the public domain;
when he accepts that franchise it is burdened by enforceable public obligations. A
newspaper can be operated at the whim or caprice of its owners; a broadcast station
cannot. After nearly five decades of operation the broadcast industry does not seem to
have grasped the simple fact that a broadcast license is a public trust subject to termination
for breach of duty.
Sometimes, I wish broadcasters would make up their minds whether they'd like to be
special or not. I've seen some of them shift back and forth on this, sometimes on the same day.
When they come in to talk about one of the special benefits of being a broadcaster, like must-
carry, I hear that free, over-the-air broadcasting provides a unique public service that requires
special government protection. Then, when they come in to talk about one of the obligations of
being a broadcaster, suddenly the specialness is gone. Now broadcasters are being unfairly
singled out for disparate treatment because the public has access to so many similar services that
don't have similar burdens. It's enough to give you lobbying whiplash.
For the record, I think that broadcasting is special. I'm all for giving broadcasters special
benefits in exchange for special obligations. But it must be a two-way street. If the public is not
entitled to ask anything from broadcasters, why do we keep doling out the preferential benefits?
What's the justification for free spectrum? What's the justification for must-carry?
For me, it's a package deal. Either broadcasters are special or they're not. They can't have
it both ways.
Of course, that won't stop some from trying. One clever approach is to say that of course
broadcasters have a public interest obligation, but then to deprive that term of any real meaning.
Under this view, the public interest is "that which interests the public," and since broadcasters are
in the business of maximizing their market share, their actions almost by definition serve the public
interest. In other words, the government gave away billions of dollars worth of spectrum in
exchange for a promise to do exactly what every broadcaster would have done anyway. Some
bargain. I know some people don't think much of government's competence, but I can't imagine
government being that inept. It also assumes that Congress puts meaningless requirements in
statutes. After all, if every broadcaster's private interests always served the public interest,
Congress didn't have to say a word.
So what then do we make of the public interest standard? It's a difficult question and one
I've struggled with. Let me give you my current thinking.
First, the public interest standard is broad. Wisely, Congress didn't attempt to catalogue
what it means to serve the "public interest." Instead, as the Supreme Court has repeatedly held,
Congress gave the Commission broad and flexible authority to define the public interest as
technology and the needs of the public change.
Second, the public interest standard should be a "safety net" to protect the public against
those broadcasters who might be tempted to violate their fiduciary duty in the absence of a rule.
The fact that many broadcasters may already be fulfilling their public interest obligations does not
make the standard unnecessary. It's like speeding. Most people may drive at a safe speed
regardless of whether there is a speed limit or not. Once a speed limit is in effect, however, more
people will drive at a safe speed. And if drivers know that there's a policeman in the area
watching for speeders, the incidence of unsafe driving may fall to almost zero. The public interest
standard is the speed limit on the public airwaves. Most broadcasters may voluntarily comply
with these limits, even though they know that the FCC hasn't been handing out many speeding
tickets lately. It's the lead-footed broadcasters who don't take their public interest obligations
seriously that we should be concerned about.
Third, the public interest standard should be applied to every broadcast station, not to the
industry as a whole. If it's the bad actors that we're concerned about, those broadcasters should
not be able to piggy back on the efforts of others.
Fourth, the public interest standard should protect and enrich our children. The average
child watches 25-28 hours of television a week. There is no doubt that television exerts a great
influence on their development and well-being. We must do what we can to protect our children
from material that may harm them and to ensure that they have access to programming that meets
their particular needs.
Fifth, the public interest standard should promote an open and robust debate on issues of
public concern. As the Supreme Court has said on more than one occasion, "speech concerning
public affairs . . . is the essence of self-government." Let me quote (for the last time, I promise)
from Red Lion:
The people as a whole retain their interest in free speech by radio and their collective right
to have the medium function consistently with the ends and purposes of the First
Amendment. It is the right of the viewers and listeners, not the right of the broadcasters,
which is paramount. It is the purpose of the First Amendment to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by government itself or a private licensee. It
is the right of the public to receive suitable access to social, political, esthetic, moral and
other ideas and experiences which is crucial here. That right may not constitutionally be
abridged either by Congress or the FCC.
The importance of television to the democratic process cannot be overstated. Indeed, just a few
days ago, the Supreme Court noted that a majority of Americans rely on television as their
primary source of electoral information.
Sixth, the public interest standard does not countenance censorship. I do not want the
government to decide which views I can and cannot hear. But I believe it is fully consistent with
the First Amendment -- indeed, I believe that it promotes First Amendment values -- for the public
to be exposed to a wide range of views on issues of public concern. I think that the public is
always better served when it hears different viewpoints than when it hears only one side of the
story, whether that one side is the government's or the broadcaster's.
In my mind, television is therefore much more than a toaster with pictures, and radio is
much more than a toaster with sound. They educate us, entertain us and shape our future. Most
broadcasters do a good job of serving the public interest. But it would be nothing short of
miraculous if they all did. We owe it to the public, and we owe it to those broadcasters who are
unfairly carrying the full load, to better define and enforce the public interest standard. And we
should not be deterred in this critical task by those who would use specious constitutional
arguments to try and block the way.